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Lord Goldsmith: My Lords, I declare three interests. First, I am a practising barrister who will have to pay these fees. Secondly, I am a former chairman of the Bar Council. It was some years ago, probably in my time, that this problem first came to a head and we had to grapple with the question of how to enforce subscriptions. Thirdly, for five years I was chairman, and am now president, of the Bar's Pro Bono Unit which is one of the organisations that benefits from assistance from the Bar Council. Since its inception that organisation has received over 2,000 applications for assistance from members of the public. More than one in 10 barristers agree to provide their services free and commit themselves for a minimum of three days a year. The income from the certificates will not be used to pay them in any way, but it is necessary to support the administrative expenses. In those respects the order represents a fair balance between the income the Bar Council will continue to raise on a voluntary basis for its representational activities and that raised through the practising certificate.
My noble friend the Minister said that regulation, which is what the Bar Council does, benefits all barristers. He went on to say that it benefits the public interest. That is what justifies the compulsory nature of the order.
I understand from the present chairman of the Bar that the Bar Council has agreed that its accounts will be subject to external audit after one year and every three years thereafter so that there is assurance that the split between voluntary and compulsory contributions is properly looked at. Subject to that matter, I agree entirely with my noble friend Lord Brennan and have nothing further to add.
As both noble Lords who have spoken before me made clear--I have some trepidation in following two former chairmen of the Bar Council--this is a matter where the public interest is very much concerned. As the noble Lord, Lord Goldsmith, explained, the income of the General Council of the Bar will be divided into two main sources. One is compulsory income from practising certificates; the other is the voluntary subscriptions paid by members of the Bar. Up to now the majority of the Bar have paid voluntarily.
Income received from the voluntary subscriptions will be available to the Bar Council for what may be loosely called its professional, its trade union functions--advancing the professional interests of the Bar--rather than primarily for the purpose of protecting the public interest.
The order contains a number of additional purposes for which money raised by practising certificate fees can be spent and which therefore can be taken into account when fixing the level of fees to be charged for practising certificates. As the noble Lords, Lord Brennan and Lord Goldsmith, have pointed out, the council participates actively in law reform and in the legislative process. It makes valuable contributions. I believe these are very much in the public interest.
Certainly, the provision of free legal services through the Free Representation Unit and through the Pro Bono Panel, in which the noble Lord, Lord Goldsmith, has played so important a part, are very much in the public interest. It is therefore wholly justifiable that the administrative costs of these should be paid by the compulsory practice certificate fees.
The promotion of the protection by law of human rights and fundamental freedoms is very much in the public interest. It seems entirely justified that, for example, the subvention paid by the Bar Council to the Bar human rights committee should be capable of being taken into account.
The final issue, the promotion of relations between the council and bodies representing the members of legal professions in jurisdictions other than England and Wales, caused me a little more difficulty. That issue comes much closer to the dividing line between the representational and the public interest functions.
It is perhaps not self-evident why it is necessarily in the public interest to pay for attendance by representatives of the Bar Council at, let us say, meetings of the Commonwealth law conference or the annual meetings of the American Bar Association or other similar regions. However, it seems to me that, in an age of globalisation, although these come close to the line, I am persuaded they are on the right side of it and that it is not only in the interests of the Bar itself, but in the interests of this country through encouraging, for example, the use of the English courts by foreign commercial lawyers and foreign commercial clients. Therefore, I give my support to this order and am happy to endorse it.
Those of us who remember the passage of the Access to Justice Act will recall that there were occasions when the relationship between the Bar Council and the noble and learned Lord the Lord Chancellor was perhaps somewhat less than totally harmonious. Therefore, it gives me particular pleasure to hear two distinguished former chairmen of the Bar, the noble Lords, Lord Brennan and Lord Goldsmith, give this order their full support. I also give it my support. On
Lord Bach: My Lords, I am most grateful to noble Lords who have spoken, particularly to those who spoke briefly on the subject. I am grateful to the noble Lord, Lord Kingsland, for indulging us this evening by having the debate at this time. But I am more grateful for the support that all noble Lords have shown for the order, both from the Opposition parties, and particularly from my two distinguished noble friends who served the Bar so well during their time in office. It is a great boost for the order that both have spoken on it. All that is left for me to do--certainly not to rise to the bait about the Access to Justice Act which the noble Lord, Lord Kingsland, so temptingly puts before me--is to commend the order to the House
Baroness Buscombe: We debated this clause at some length but it is appropriate that we have this opportunity to return to some of the major effects of Clause 1 in terms of the Bill as a whole. There is obviously deep concern on this side of the Committee as to the scope and extent of this Bill and its implications.
There are two points that I wish to make in particular. The first concerns the policy that underlies this clause. The second concerns the methods by which we are accustomed to legislate, the changes that this clause will make to those methods and the constitutional impact which those changes will have unless appropriate safeguards are put in place.
My first point is this. The purpose of regulation is to advance the public interest; it is not to promote state control. This Government have spoken more and more frequently in recent days of imposing regulation with a "light touch". That is their phrase, not mine. While that may be their stated intention, that is not the impression that I get from this clause. It is true that the Bill speaks of the public interest, but it also speaks of burdens and much more of the imposition of burdens than the relieving of them. It seems to me that this Bill and the powers envisaged by this clause anticipate regulation in ever increasing circles so that legislation--and I use that word in its very widest sense--might become the province no longer of Parliament but any number of public and semi-public bodies. I am left with a distinct impression that control
This Bill--proposing as it does the creation of a power to impose fresh burdens and to do so by means of subordinate legislation through a network of regulatory authorities, not effectively answerable to the legislature--is a different animal entirely. Comparisons between this Bill and the 1994 Act in terms of overall effect are, for these reasons alone, wholly inapt. Any attempt to compare the safeguards provided in this Bill with those contained in that Act for the purpose of demonstrating an adequate level of security would be wholly inappropriate.
Of course we are in favour of the advancement of public interest. It is clearly expedient that we should all be protected from bad practice and equally clear that we should all receive the benefit of good practice. We accept that this may be achieved by means of regulation. This aim of enhancing the public good by regulation is only achievable at the expense of those upon whom the burden of compliance with regulation is cast. It is they, those who must bear the burden of compliance, who are immediately affected by it. It is they whose jobs are made more difficult and whose lives are often turned upside down by it.
As presently framed, this Bill, and this clause in particular, seem to me to divert attention away from those who will suffer from the impact of new regulation or, at the very least, to mask the effect this Bill will have upon our lives. Regardless of the appropriateness of primary or secondary procedures, how are we to know what is a suitable candidate for the procedure envisaged by this Bill?
My second point is of greater constitutional significance. To extend the power to legislate regarding burdens affecting persons is to extend the power to create subordinate legislation too widely. We are all agreed that subordinate legislation is a valuable legislative tool. However, it should not be permitted to be used as a by-pass enabling those who are so minded to avoid the less speedy and altogether more traffic-congested route of primary legislation where such is the appropriate route. Primary legislation benefits from--or perhaps suffers from depending upon your perspective--the sometimes critical nature of public debate. Secondary legislation, on the whole, does not. Furthermore, whereas the passing of primary legislation is a process attended with a degree of thoroughness and intellectual rigour, there is perhaps a tendency for the same processes not to be brought to bear in the case of secondary legislation. These are both good reasons to prefer the paths of primary legislation where appropriate.
What all this means is that the test that is proposed is so ill-defined as to be of no practical effect and certainly it provides no impediment to an abuse of the power. It is, in truth, no test at all. We believe that this is a wholly inappropriate approach--even when used informally as a threshold test for the application of subordinate legislative procedures--to the amendment of primary legislation especially in a field so wide-ranging as that envisaged by the Bill.
What means are we to be given to enable us to identify our elephant? That is something that we should be told. This Bill does not bear comparison with the Act of 1994 and it takes little imagination to recognise the opportunity for the arguments, once it is passed, that may be applied to justify wide-ranging subordinate legislation along lines as yet unimagined. Much concern has been expressed, for example, that these powers could be used to abolish or at least radically revise licensing laws, that is, beyond the proposals listed by the Cabinet Office which are currently under preparation that could be implemented by this route. That is one small example.
Let the Bill make its aim of reform clear, lest we are all at risk of being submerged in a flood of regulation for regulation's sake. I beg to move.
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